On the Role of Congress and the Courts in the Special Counsel Investigation: A Brief Reply to Rick Pildes

My colleague Rick Pildes has made a thoughtful, well-crafted case for the constitutionality of a judicially enforceable codification of the Department of Justice special-counsel regulations. A bill recently introduced by Sens. Chris Coons and Thom Tillis has this aim, and both that measure and another, sponsored by Sens. Lindsey Graham and Cory Booker, would provide for review of the attorney general’s decision to fire the special counsel. Rick’s imperative is striking a balance between executive-branch control of the law enforcement process and appropriate protections for the impartiality and integrity of law enforcement in cases involving possible misconduct by the president or other senior executive-branch officials. He stresses, rightly, that the special-counsel regulations answer many of the key objections to the old Independent Counsel statute, vesting far more control in the attorney general over such decisions as the appointment of a special counsel.

For these reasons, Rick argues that my concerns about the revival of an Independent Counsel-type statute are “overwrought.” He has no doubt that under Morrison, the bills now in the hopper would pass constitutional muster.

Still, questions linger and doubts remain. If the court were to roll Morrison back out again, unaffected by experience with these kinds of limits on executive discretion, it might all turn out as Rick forecasts and hopes. One could read the 1988 decision to support codification, especially if weighing heavily in the balance the differences between DOJ rules and the more far-reaching intrusions of the Independent Counsel law. But there is reason to doubt that the court would approach the constitutional issues today in the same way. Justice Scalia’s dissent has fairly decisively won the argument over time, and even if we refrain from over-reading this victory, there is clear ground for constitutional doubt about the bills under consideration.

But the first issue to dispose of is one major difference between these Senate proposals and the Independent Counsel statute. They are directed to an ongoing investigation. Their goal is to keep Mueller in his position and to protect the conduct of a current inquiry into the Russia matter (and possibly other lines of inquiry that have opened up). When the court in Morrison upheld the judicial review of the removal of a special counsel or termination of her mandate, it emphasized that the law was not aimed at interfering with executive supervision of a specific investigation. The court noted in the case of the termination provisions that:

The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway—this power is vested solely in the Attorney General. As we see it, “termination” may occur only when the duties of the counsel are truly “completed” or “so substantially completed” that there remains no need for any continuing action by the independent counsel. It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III.

Now this passage concerns termination and not removal, but the court is clearly concerned about “judicial intrusion” in pending investigations. A law with this very intervention as its goal would fall well within that concern. In a fine piece here at Lawfare, Michael Paradis frames the same issue somewhat differently: “Can the judicial branch force the executive branch to continue to employ certain personnel?” Both the Coons-Tillis and the Graham proposals are vulnerable on this score.

Setting aside this significant issue, the question is how the courts would address the constitutional issues in light of the second thoughts about Morrison’s theoretical construct and wishful thinking. Rick finds comforting that by codifying the Justice Department rules, the Coon-Tillis bill is merely “endorsing” them or “piggybacking on DOJ’s own conclusions.” So, as he sees it, this measure would not occupy constitutional territory belonging to the executive. But on another view, it is not merely an “endorsement”: It is a law, and once passed, it becomes Congress’s direction to the Justice Department—“these are your rules, like or not.”

As Rick points out, Congress had informal “input” in the development of the current rules. That level of endorsement seems to fall comfortably within constitutional lines. The DOJ could take or leave the input on the regulations. It cannot do as it will with a law. Then additional questions arise. Once Congress has taken this step, what additional steps beyond “endorsement” might it be encouraged to take in the future? When does this engagement with the mechanics of running an investigation pass from simply “piggybacking on DOJ’s conclusions” to more overt interference in the Executive’s power to control an investigation?

Another issue is the role of the judiciary more generally—not in the specific case of the Mueller investigation—in reviewing a proposed firing of the special counsel. The court’s Morrison decision tersely dismissed the concerns: “The Act does give a federal court the power to review the Attorney General's decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the Judiciary.” On this point as much as, if not more than, on any other, it would seem that post-Morrison experience would give the court pause. As Justice Scalia foresaw, the political sensitivities of these matters threaten to draw the courts into damaging political conflicts in which their motives are brought into question.

This was the unfortunate outcome of the Special Division’s involvement in the Clinton case, most controversially in the replacement of Robert Fiske with Ken Starr and, later, in Starr’s expansion of his inquiry. It could happen easily enough in present circumstances. To cite one example, an attack on the special counsel for a “conflict of interest” arising from political or ideological bias invites questions about the reviewing court’s own biases. Questions about what constitutes “good cause” for removal present these same risks.

And add to that problem the limits of judicial capacity and accountability. Even judges managing to stay well above these suspicions of motive must still sort out issues that, at bottom, may be laden with political content or implications. Yet they are not, of course, politically accountable for their choices.

But Congress is accountable for its choices. This brings the discussion back to the exercise of its impeachment power as the constitutionally appropriate response to the presidential obstruction of an investigation involving him, senior aides or associates, or family members. Giving the courts license to adjudicate removal—to get into the middle of an investigation of obstruction—helps to excuse Congress from confronting its responsibility to exercise the impeachment power.

It could also complicate that exercise. Assume that, pursuant to the authority conferred by these bills, a court acts to block a removal of the special counsel, finding that the attorney general relied on wholly spurious grounds in seeking dismissal. The facts emerging from this review, together with others, might lead a Congress to consider impeachment, but it would face the objection that it should allow the investigation to “play out.” And the same would be true of a removal that the court sanctions. Then the question of impeachment will surely be met with the argument that successful dismissal shows only that the investigation was without merit and congressional intervention is unwarranted.

Paradis discusses these same consequences for impeachment if, as is highly likely, the firing of Mueller results in immediate litigation over the constitutionality of an enactment on the model of the Coons-Tillis or Graham bills. Should the president win, Paradis writes, he will surely declare that the Mueller dismissal was vindicated: “That, in turn, could delegitimize the work of the special counsel’s office and insulate the president from political accountability he might otherwise face for firing yet another public servant whose criminal investigators were getting too close.”

Either way, the courts end up in an awkward role in the inescapable politics of impeachment. Some commentators would prefer this result to the initiation of impeachment proceedings, often under the influence of high anxiety about impeachment and expressed with reference to the term “constitutional crisis.” From this point of view, the issues are best resolved through the legal process, through the appearance at least of disinterested and principled adjudication, rather than political contestation, with decisions in the hands of judges and not politicians.

It is fair to ask whether the benefit achieved by this diversion of the conflict to the courts is largely a cosmetic one. One ironic result is that, to stave off the feared “crisis,” the courts are pressed into a constitutionally dubious role. The price paid for this outcome, in the loss of political accountability, is high.

It would be far better for Congress to just do its job with the powers clearly assigned to it: It would be constitutionally sounder but also wiser.

Bob Bauer served as White House Counsel to President Obama, and returned to private practice as a partner at Perkins Coie in June 2011. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the Co-Director of the university's Legislative and Regulatory Process Clinic.